Madras High Court
The Manager vs The Presiding Officer on 8 March, 2021
W.P.(MD)No.9777 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.9777 of 2012
and
M.P.(MD).No.1 of 2012
The Manager,
ICICI Bank Ltd.,
P.Alagapuri Branch,
Madurai. .. Petitioner
Vs
1.The Presiding Officer,
Labour Court,
Madurai.
2.The Labour & Conciliation Officer,
Madurai 625 020.
3.S.Selvam .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Prohibition, prohibiting the first respondent
herein from trying the industrial dispute raised by the third respondent in
I.D.No.18 of 2008 on the file of the Labour Court, Madurai, under
Section 2A(2)(1) of the Industrial Disputes Act, misquoting the
1/14
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W.P.(MD)No.9777 of 2012
provisions of law against the petitioner Bank as ultra vires and
unconstitutional.
For Petitioner : Mr.V.Perumal
For Respondent No.1 : Labour Court
For Respondent No.3: No appearance
ORDER
This writ petition has been filed for the issue of Writ of
Prohibition, prohibiting the first respondent herein from trying the
industrial dispute raised by the third respondent in I.D.No.18 of 2008 on
the file of the Labour Court, Madurai, under Section 2A(2)(1) of the
Industrial Disputes Act, misquoting the provisions of law against the
petitioner Bank as ultra vires and unconstitutional.
2. The case of the petitioner is that the petitioner Bank is
constituted under the Banking Regulation Act, 1949 and governed by the
Reserve Bank of India. The said Act is a Central Act enacted by the
Central Government for the purpose of constitution and formation of
banking companies. The Corporate office of the petitioner Bank is
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W.P.(MD)No.9777 of 2012
situated at Mumbai and the further administration affairs and transactions
of the Bank are governed by the provisions of the Act, Rules and as per
the procedures notifications issued by the Central Government from time
to time. The petitioner Bank has several thousands of branches all over
the country and at abroad. The petitioner Bank is not amenable for any
action under the provisions of the State Act or Rules or Notifications
issued by the respective State Government. Therefore, any action taken
by the petitioner Bank or any action initiated against the petitioner Bank
are governed under the provisions of the Central Act and Rules framed
by the Central Government. While so, challenging the order of dismissal
dated 24.5.2006, the third respondent has raised an industrial dispute in
I.D.No.8 of 2008 before the Labour Court, Madurai, which is pending as
on date. The petitioner Bank filed its counter statement raising
preliminary issue regarding the maintainability of the dispute before the
Labour Court and questioned the jurisdiction. In these circumstances,
the petitioner has filed this present writ petition for issuance of the writ
of prohibition, prohibiting the first respondent from trying the industrial
dispute raised by the third respondent under Section 2(A)2(1) of the
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W.P.(MD)No.9777 of 2012
Industrial Disputes Act, 1947.
3. Mr.V.Perumal, learned counsel for the petitioner would submit
that the issue arises for consideration in the present case is no longer res
integra. He would further submit that the issue has already been settled
by this Court in W.P.(MD)No.2467 of 2012 on 17.04.2012 and further, he
relied on the judgment of the Bombay High Court in the case of ICICI
Bank Ltd., and another v. Surendra Chelawat and others, reported in
2011 SCC Online Bombay 1821:2012 LLR 290, wherein the same issue
was settled before the Bombay High Court. The learned counsel would
further state that the petitioner bank is governed under the provisions of
the Central Act and Rules framed by the Central Government. Hence, the
third respondent should have raised the industrial dispute before the
Tribunal constituted by the Central Government, ie., Central Government
Industrial Tribunals-cum-Labour Court at Chennai, not before the State
Law Officer or the Labour Court constituted by the State Government.
Accordingly, he prays for allowing this writ petition.
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W.P.(MD)No.9777 of 2012
4. Heard the learned counsel appearing on behalf of the petitioner
Bank and no one represented the third respondent. This Court has also
perused the materials placed before this Court.
5. This Court has considered the submissions made by the learned
counsel for the petitioner Bank and perused the decisions referred by the
learned counsel for the petitioner in support of his contention. The
relevant portions are extracted hereunder:
(i) In the case of The Management, ICICI Bank Ltd., v. The
Presiding Officer and another in W.P.(MD).No.2467 of 2012 dated
17.04.2012, wherein in paragraphs 4, 5, 6 and 7 it has been held as
follows:
“4.It is contended by the learned counsel
appearing for the petitioner that the
petitioner is a Banking Company and the
"appropriate Government" under the industrial
Disputes Act is the Central Government in
terms of Section 2(a) of the Industrial
Disputes Act. Therefore, the second
respondent should have raised the dispute
before the appropriate Authority under the
Ministry of Labour, Government of India, but,
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W.P.(MD)No.9777 of 2012
he has raised the dispute before the Welfare
Officer, who has no jurisdiction to try the
case. It is contended on behalf if tie
petitioner that the claim made before the
first respondent under Section 2-A(2) of the
industrial Disputes Act is not maintainable.
Thus, it is contended that the first
respondent has no jurisdiction to entertain
the petition.
5. However, it is contended by the
learned counsel appearing for the second
respondent that the Labour Court rightly
held that the question of jurisdiction is
a mixed question of fact and law and hence,
the question raised by the petitioner
could also be decided along with other
issues when the main I.D is taken up.
6. However, when a specific question
was put to the learned counsel appearing for
the second respondent as to whether the
first respondent / Labour Court has got
jurisdiction to decide the issue raised by
the second respondent, he has answered that
the first respondent has no jurisdiction to
decide the dispute raised by the second
respondent. Thus, in clear terms, he has
accepted that the first respondent has no
jurisdiction to decide the dispute raised by
the second respondent.
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7. In such event, there is no rhyme or
reason to direct the first respondent to
proceed with the matter further by taking
evidence and to pass final order. If there
is a disputed question of Fact and law,
regarding jurisdiction, the Labour Court may
be justified in saying that the issue of
jurisdiction could be dealt along with other
issues while deciding the ID. In the case an
hand, as stated already, the learned counsel
appearing for the second respondent fairly
admitted that the first respondent / Labour
Court has no jurisdiction to decide the
dispute raised by the second respondent.”
(ii) In the case of ICICI Bank Ltd., and another v. Surendra
Chelawat and others, reported in 2011 SCC Online Bombay 1821:2012
LLR 290, wherein in paragraphs 2 to 8 it has been held as follows:
“2. Rule. Rule made returnable forthwith. By this petition,
under Articles 226 and 227 of the Constitution of India,
petitioner-Original respondent challenges the order dated
31st May, 2010 passed by the learned Presiding Officer, 12th
Labour Court, Mumbal below Exhibit-C-3, rejecting
petitioner's application about preliminary issue. Petitioner-
Original respondent has filed application below Exhibit C-3
where the preliminary issue raised In the present case,
whether Central Government is appropriate Government and
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W.P.(MD)No.9777 of 2012
not the State Government. He submits that in view of section
4 of the Industrial Disputes (Banking and Insurance
Companies) Act, 1949, Central Government Is appropriate
Government. Section 4 reads thus:—
"Section 4 - Prohibition of references by State
Governments of certain industrial disputes for
adjudication ; inquiry or settlement-
Notwithstanding anything contained in any
other law it shall not be competent for a
State Government or any officer or authority
subordinate to such Government to refer .an
Industrial dispute concering any banking or
insurance company, or any matter relating to
such dispute to any Tribunal or other
authority for adjudication, inquiry or
settlement."
3.In support of his subm ission, he relied on the
judgment of this Court in the matter of Prakash Pandurang
Sawant v. Punjab & Sindh Bank?. and In the matter of
National Building Construction Corporation v. Shri Ram Pal Sin
gh.a He submits that In view of the provisions of section 4 of
the Banking Act and the two authorities cited, the State
Government is not appropriate Government. Therefore, the
impugned order passed by the Labour Court dated 31st May,
2010 and the Judgment dated 31st July, 2010 passed by the
Industrial Court in Revision Application (ULP) No. 101 of 2010.
is liable to be set aside to that extent.
4. On the other hand, the learned Counsel appearing
for the respondent. No. 1 vehemently opposes the present
application. He submits that the order passed by the Courts
below are interlocutory orders and the same cannot be
interfered in the present writ petition.
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W.P.(MD)No.9777 of 2012
5. I have gone through the provisions of Banking
Acts and both the authorities cited by the learned Counsel
appearing for the Petitioner. The Labour Court as well
asthe Industrial Court dismissed petitioners application
below Exhibit-C-3 only on the ground that In view of Apex
Court Judgment, all issues raised by the parties to be
decided together. It is to be noted that a few preliminary
issues framed by the Courts below should be decided first
instead of wasting their valuable time.
6. On the face of both the authorities cited above,
it Is clear that the Central Government is the
appropriate Government in Banking Companies. In the
matter of Prakash P. Sawant (supra) this Court held that
in case of Banking Companies, the Central Government
Is the appropriate Government. Para 17 of the said
judgment reads as thus:
"Para 17 - Before concluding the discussion on
this aspect of the matter, it would also be
necessary to note that for the purposes of the
Industrial Disputes Act, 1947, the expression
'appropriate Government' has been defined In
section 2(a)(i) to mean the Central
Government in respect of an Industrial dispute
concerning a banking company. Banking
companies are defined in section 2(b) to inter
ails include a corresponding new bank
constituted under section 3 of the Banking
Companies (Acquisition and Transfer of
Undertakings) Act, 1970. Parliament also
enacted the Industrial Disputes (Banking and
Insurance Companies) Act, 1949, section 4
whereof inter aka provides that
notwithstanding anything contained In any
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W.P.(MD)No.9777 of 2012
other law, it shall not be competent for a State
Government or any authority of the State
Government to refer an industrial dispute
concerning a bank or insurance company for
adjudication to any tribunal or authority."
7.In the case of National Building Construction Corporation
(supra) similar view is taken by this Court.
"F ro m t h e a f or e sa i d pr i n c i p l e s i t
wo u l d b e s ee n t ha t t h o u g h n o s i n g l e t e s t i s
decisive to reach the conclusion whether'
particular industry is carried on by or under
the authority of Central Government yet,
totality of circumstances in the light of the
aforesaid principles may provide firm basis for
conclusion. A company floated from public
exchequer and owned wholly by Central
Government is indicative of the fact that it is
controlled by or under the authority of the
Central Government. The Government and
entire share capital has been contributed by
It. Though the commercial activity is carried
oh by the employer industry in accordance
with Its bye-laws and Memorandum of
Association yet the employer undertaking Is
nothing but an extended arm of Government
and It apparently Is an Instrumentality or
agency of the 'State' and is 'State' within the
meaning of Article 12 of Constitution of India.
Its acts, values, regulations and governance
power are subject to constitutional
obligations and have to be in conformity with
public law principles. The existence of deep
and pervasive state control depends upon the
facts and circumstances in a given Situation,
In the present case, it would be seen that the
entire share capital of the employer was
contributed by Central Government and it
belongs to the Central Government. The
Chairman, Managing Directors and other
Directors are appointed by the President of
India. The number of Directors, the salary
and allowances of the Chairman, the
Managing Director and Directors are
determined by President of India. The
directions are issued by President of India
from time to time in regard to the conduct of
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business and affairs of the employer industry.
It would thus, to be seen that for all practical
purposes, It is the Central Government which
exercises control and supervision over the
working and function of the employer
industry and the employer industry is
virtually the agency and instrumentality of
the Government of India. In relation to the
employer industry, unhesitatingly, the
appropriate Government is Central
Government under section 2 (a)(i) of the
I.D. Act."
8. Therefore, on the face of it, it is seen that
both the Courts below failed to consider the preliminary
issue raised about the maintainability of the complaint on
the ground that the appropriate Government is the Central
Government and not the State Government in respect of
industrial dispute concerning the Banking Companies
constituted under section 3 of the Banking Companies Act,
1970. Therefore, both the orders passed by the Labour
Court below Exhibit-C-3 dated 31st May, 2010 and the
Industrial Court dated 31st July, 2010 in Revision
Application (ULP) No. 101 of 2010 in respect of Exhibit-C-3
are set aside and the matter is remanded to the Industrial
Court to decide the preliminary issue raised in the
application Exhibit-C-3 filed by petitioner to be decided by
the 12th Labour Court at Mumbai within four months
from the receipt of the writ of this Court. Writ petition is
disposed off with the above directions.”
6. The above decisions referred by the learned counsel for the
petitioner is squarely applicable for the case on hand. Since the
preliminary issue was raised before the Labour court with regard to the
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W.P.(MD)No.9777 of 2012
jurisdiction in view of the fact that the petitioner bank is governed under
the provisions of the Central Act and Rules framed by the Central
Government, the Labour Court has no jurisdiction to decide the dispute.
Therefore, the third respondent should have raised the industrial dispute
before the Tribunal constituted by the Central Government, ie., Central
Government Industrial Tribunals-cum-Labour Court at Chennai, not
before the State Law Officer or the Labour Court constituted by the State
Government. Hence, the industrial dispute raised by the third respondent
is not maintainable.
7. Accordingly, the writ petition stands allowed. No Costs.
Consequently, connected miscellaneous petition is closed. However,
liberty is granted to the third respondent to raise the industrial dispute
before the appropriate Labour Court, constituted by the Central
Government, to work out his remedy in the manner known to law.
08.03.2021
Index:Yes/No
Internet:Yes/No
PJL
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W.P.(MD)No.9777 of 2012
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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W.P.(MD)No.9777 of 2012
M.DHANDAPANI,J.
PJL
W.P.(MD).No.9777 of 2012
08.03.2021
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